- July 13, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR), Contracts
CONTRACTS – LEASE AGREEMENTS – LIABILITY TO PAY OCCUPATIONAL RENT IN RESPECT OF AGRICULTURAL LAND
CIVIL PROCEDURE – APPEALS – WHETHER AGAINST ORDER, REASONS, OR JUDGMENT
Before the High Court was an action for the eviction of the appellant from a certain piece of agricultural land, and an order for payment of occupational rent computed from May 2013’ up to the date the appellant vacates the farm. The High Court found in favour of the respondent, granting her the orders sought with interest in respect of the occupational rent. The appellant noted an appeal against the order of the High Court.
On appeal, the only issue the Supreme Court was seized with was the order of occupational rent – should the court find for the respondent, the appellant would be liable for the payment of ‘occupational rent’ and such rent is to be calculated from 1 May 2013 to 19 November 2020 (i.e., seven years, six months, and 19 days). The respondent argued that since the notice of appeal was only directed at the whole of the court order a quo and not against the judgment a quo; and as there was no order for damages, the appellant could not raise the issue of the reasonableness of the award of ‘occupational rent’ on appeal. The respondent further argued that her case was never one of damages but that of vindication of property rights pursuant to Article 16 of the Namibian Constitution (this being the first-time respondent raised the constitutional claim in the matter). FRANK AJA (with DAMASEB DCJ and HOFF JA concurring) considered the appeal and held that:
- Whereas there is a difference in meaning between a judgment and an order – this is irrelevant in the present matter. Normally, actions or trial matters are concluded by judgments, whereas applications are concluded by orders. This is however not cast in stone. What is clear is that one cannot appeal against the reasons of a judgment or order only.
- In the present matter there is no doubt as to the ground of attack against the judgment and the respondent’s attempt to obfuscate by a submission based on pedantic literal semantics cannot be accepted.
- Respondent’s constitutional claim should have been raised in the court a quo and canvassed there – it cannot be raised as a legal point in this court as this would be prejudicial to the appellant.
- This court agrees with the appellant’s submission that whatever respondent may choose to call her claim as framed, it is a claim for the wrongful holding over of properties subsequent to the termination of a lease as envisaged in the common law.
- The stance taken by the respondent in her replication that ‘it is not for the defendant [appellant] to determine what is reasonable and what is not reasonable rent for the plaintiff’s [respondent’s] properties; Plaintiff is in law entitled to demand any amount she deems reasonable as rent amount for her properties has no legal foundation. In the context of the claim against appellant, it is for the court to determine on the evidence presented to it what damages the holding over by the appellant caused the respondent where the parties could not agree.
- To determine a reasonable and market related rental of a property, a court is not confined to expert evidence only as is submitted by the appellant. A court can consider other factors (i.e., compare evidence of landlords or tenants in the area, or in the context of a farm, evidence from other lessors or lessees of farms being used for livestock farming). As is evident from the pleadings and stance taken on behalf of the respondent, no evidence was presented as to what a reasonable or market related rental would be for the rental of her farms at the time. Appellant’s evidence was that, considering that it has been farming on rental properties since 1995, the rental of N$8500 per month was high but fair, and that of N$20 000 per month would be impossible to make a profit over the term of the proposed lease.
- It was not open to the appellant to contend that N$8500 per month would not have constituted a fair and reasonable rental for the property – the court a quo should have, based on the evidence presented to it, found that a reasonable ‘occupational rent’ would have been N$8500 per month and not N$20 000 per month. The appeal should succeed to this extent only.
As a result, the appeal succeeded to the extent of the issue of ‘occupational rent’ in the amount of N$8500 per month, calculated from 1 May 2013 to 19 November 2020.
Krucor Investment Holdings (Pty) Ltd v Estie Kwenani NASC (13 July 2022)